Tate v Salvesen Logistics Ltd [1997] UKEAT 226_97_1711

EAT
Tate v Salvesen Logistics Ltd
[1997] UKEAT 226_97_1711 · 1997-11-17

JUDGE HARGROVE QC:

On 20 December 1996 the Industrial Tribunal found that the Appellant had been unfairly dismissed because of the procedure that was followed and I summarise, that that procedure was flawed. However, the Industrial Tribunal rejected the claim that the Appellant was dismissed for health and safety reasons.The Appellant wishes to appeal against that finding. It has been difficult to ascertain what difference success on appeal would make. Mr Tate regarded it as a moral issue and he also felt that he would have a better chance of obtaining more compensation. Since he did not make any claim in the Originating Application which would have satisfied Section 118 of the 1996 Act, the position is by no means clear. However, we have considered matters on the basis that the appeal is not purely academic, but might out of actual results so far as Mr Tate is concerned, if he succeeded.Mr Tate has appeared in person. Not unnaturally he has laboured under the difficulty of most litigants in person. But he does not entirely understand the very limited powers which this Tribunal has when it comes to questions of setting aside the findings of the Industrial Tribunal, who have heard all the witnesses and have had adequate opportunity of assessing the situation.The Industrial Tribunal found that the Appellant, who was the fleet engineer (North) for the Respondents, was a subordinate of Mr Rowe, who was the engineering director. Mr Tate had unsuccessfully applied for Mr Rowe's post and Mr Rowe was therefore the Appellant's line manager. On 7 February 1996 the Appellant had a conversation with a Mr Gittins. The Tribunal found that Mr Gittins was a director of an associated company. In the course of conversation which was informal, the Appellant alleged that the Respondent company was out of control. He requested Mr Gittins to treat his observation in confidence. Mr Gittins refused and he spoke to a Mr Miles and a Mr Bretherton. The latter had been managing director of the Respondent company and the former was the managing director of the technical services.It seems that what alarmed Mr Tate was the transport fleet was experiencing sundry defects in maintenance. It is plain that what was said on that occasion, that is the conversation with Mr Gittins, went beyond raising the type of problem with health and safety, but went to the fundamentals of management. It must be remembered that dismissals for health and safety reasons are governed by Section 100 (1)(c) of the Employment Rights Act 1996 , and that is in these terms:
"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— (c) being an employee at a place where— (i) there was no such representative or safety committee, or
(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,"The Industrial Tribunal in their Extended Reasons decided the point in the following manner:
"12. We are satisfied that the dismissal was not unfair for health and safety reasons under what is no Section 100. Our reasoning being that whilst health and safety matters were addressed in the meeting with Mr Norris, the reason or principal reason was not because he brought to his employer's attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. Although he did bring up matters relating to health and safety he did not bring them up by reasonable means. We accept that he had had discussions with Mr Rowe relating to the general running of the engineering function documents, R1-6-12 make this clear. Furthermore we accept that he did not have a high opinion of the way Mr Rowe was running that function. Nevertheless it was an inappropriate way to bring up health and safety matters to raise them with Mr Gittins in a conversation which Mr Gittins had started and which the Applicant requested to be in confidence. Even accepting that the Applicant was dissatisfied with the way in which Mr Rowe was running the department, the way to raise concerns was not in a casual conversation with Mr Gittins. In his Originating Application the Applicant refers to the fact that he had raised matters with Mr Rowe in the past. We accept that they had had discussions. Furthermore the documents make this clear. However we are not satisfied that Mr Rowe had just brushed matters aside. If there was a specific matter of health and safety it should have been raised with him and then taken further in the line of reporting rather than made in a casual conversation "in confidence" to Mr Gittins. That is not bringing to the employer's attention by reasonable means circumstances relating to his work which he reasonably believed were harmful or potentially harmful to health and safety. Accordingly we find the complaint not well founded on the basis of the health and safety allegation."
Mr Tate says that misses the point. He had been complaining about safety matters for some time. Indeed the Tribunal took that into account in that paragraph. Moreover it is clear that on the Appellant's own evidence that even though he had had a single conversation with Mr Bretherton, he had not given any specifics and he did not raise the matter, he raised them with Mr Gittins.We have considered the Chairman's Notes which are full and detailed. On the evidence before the Tribunal it was entitled to look at the matters and form a view as an Industrial jury. They found that the manner in which the matters were raised was not reasonable. It is impossible to say that was a finding which they could not reach on the evidence, or that they were plainly wrong to do so. They found that the correct method was for the Appellant to raise matters with Mr Rowe as his line manager. There had been a number of occasions, although he had done so, and he obviously then decided to cut Mr Rowe out of the line of communication on the basis of his own assessment at the line manager's lack of ability. It is therefore not surprising that the Tribunal found as it did.There is nothing in the matters raised on this appeal which entitles us to intervene and the appeal is therefore, with regret, dismissed.